[2025] EWCA Crim 1113

The Solicitor General is of course not bound by the stance taken by the prosecution at trial. That said, the observations made by prosecution counsel were measured and are themselves a significant indicator of the true seriousness of the offender's conduct, coming from experienced and competent prosecuting counsel at the end of the trial. It is also to be remembered that on V's evidence, the manner and circumstances of the offender's conduct when committing the offence to which he pleaded guilty were markedly different from that inflicted on her routinely by his co-defendants. Third, there is force in the submission that the difficulties affecting the offender would have been present at the time and we do not think it was outlandish for Mr Byrne to submit that the offender's level of functioning would have been closer to that of the complainant than mere chronological age would suggest. The judge was entitled to accept that submission, as she did expressly in her sentencing remarks. None of these features is determinative of the outcome of the reference but all should be given considerable weight.

The purpose of the guideline is of course to provide a structured approach to assessing the seriousness of a defendant's conduct. In our judgment the discussion with prosecuting counsel provides a reasonable response to the features relied upon by the Solicitor General. There was no evidence that the offender himself used alcohol on V to facilitate the offence. We note in passing that V having consumed alcohol was rightly treated by the judge as an aggravating feature, but the evidence does not establish that V was highly intoxicated at the time of this offence; and it was accepted by trial prosecution counsel that because the offender's offence happened early on, the offender may not have been aware of the dreadful pattern that later developed. That is supported by prosecution counsel's observation that the offender was kept out of the loop and just happened to be there, which in turn feeds into the judge's consideration of specific targeting of a particularly vulnerable child. V was undoubtedly vulnerable, but the factual account set out earlier in the reference and in this judgment does not obviously or necessarily support a finding of specific targeting of V within the meaning of that provision of the guideline.

Lastly, although undoubtedly borderline, the discussion of the disparity of age with prosecution counsel and Mr Byrne's submission about chronological age requires a nuanced approach based upon the particular characteristics of the offender in addition to simple chronological age, not least because prosecution counsel accepted that the judge could take the view that the disparity in the present case was not sufficient to trigger that particular provision of the guideline.

For the avoidance of any doubt, we would unhesitatingly accept and endorse that in many if not most cases a disparity of ages between a 21-year-old offender and a 15-year-old victim will qualify as a significant disparity within the meaning of the guideline. We emphasise that our decision is specific to the facts and findings of the present case and cannot be relied upon as setting any form of precedent or establishing any sort of principle, save possibly to repeat what is well known, namely that in an individual case chronological age may not tell the whole story.

In these circumstances we consider that it was properly open to the judge to approach the factors relied upon by the Solicitor General in the manner suggested by trial prosecution counsel. Specifically, it was open to her to say that she was not obliged to treat the case as falling within category 1A for the reasons we have discussed. That would mean that the case was formally to be treated as falling within category 1B, with the starting point and category range that we have already identified. The judge properly recognised the aggravating features and was right to treat the case as falling towards the top end of category 1B.

This was a humane and carefully considered sentence by a judge who had observed the offender closely throughout the trial and was fully aware both of what he did to V and of his own personal characteristics and the aggravating and mitigating features that she had to balance. It may also be described as a lenient sentence. It was at the bottom end of the range of sentences that the judge could properly impose on him. It is properly arguable that it was unduly lenient, but if it was, we are not persuaded that we should intervene. We therefore give leave but dismiss the reference.